ROUTE OF APPEAL FOR AN UNALLOCATED CASE: LIE -v- MOHILE

In Lie -v- Mohile [2014] EWHC 3709 (Ch) Mr Justice David Richards considered an argument that an appeal in an action that had not been allocated should be appealed to the Court of Appeal.

THE ACTION

This was a partnership action where the judge at first instance dissolved the partnership. The trial was heard by a Circuit Judge sitting in the Chancery Division of the county court. There was an appeal and, pending the appeal, a High Court Judge made an order, in essence, that the business of the partnership should continue as normal.  The order was made on application without a hearing and an application was made to vary it. that application was dismissed.

WHICH COURT SHOULD HEAR THE APPEAL?

There was then some discussion about which court should hear the appeal

1. An issue arose as to whether an appeal from the order of HHJ Walden-Smith lay to the High Court or to the Court of Appeal. It was suggested in correspondence by Dr Mohile’s solicitors with Dr Lie’s solicitors and with the court that as the claim had proceeded below as if it were allocated to the multi-track, it should be treated as if it had been so allocated, with an appeal lying to the Court of Appeal. At the hearing, counsel for Dr Mohile accepted that, as it had not been so allocated, an appeal lay correctly to the High Court. Dr Mohile nonetheless applied for an order under CPR 52.14 transferring the appeal to the Court of Appeal. Counsel for Dr Mohile accepted that the appeal does not raise an important point of principle or practice, so that the order could be made only on the basis that there is some other compelling reason for the Court of Appeal to hear it. The facts that the proceedings would have been conducted exactly as they were if an allocation to the multi-track had been made and that, if such an allocation had been made, an appeal would lie to the Court of Appeal do not, in my judgment, constitute compelling grounds for this appeal to be heard by the Court of Appeal. Many appeals to the High Court from final orders involve issues of law and challenges to findings of fact, and this appeal is no different.

THE FACT THAT AN ACTION WOULD HAVE BEEN IN THE MULTI TRACK IF ALLOCATED DOES NOT CONSTITUTE “COMPELLING REASON” FOR AN APPEAL TO BE HEARD BY THE COURT OF APPEAL: KNOWING THE DESTINATION FOR APPEALS

It is important that everyone is familiar with the destination table of Practice Direction 52A which sets out the destination for appeals. The current case would come within “Part 7 Claim (not MT).

Table 1 – Proceedings other than family or insolvency proceedings

Table 2 – Insolvency proceedings